Saturday, July 14, 2018


What's the Russian translation of Ham Sandwich?

First, Mueller, back in February 2018, filed an indictment against Russians and Russian business entities for "conspiracy to defraud the United States" which I didn't know was a real thing. That hasn't gone so well. It seems more like a PR stunt than actual criminal justice as Russia was never going to extradite any of the named and involved individuals. But one of the entities charged hired lawyers in America who entered their unconditional appearance on behalf of this one accused, pled not guilty and demanded speedy trial and discovery of all the evidence the feds had. Oops. That wasn't supposed to happen. The trial was recently delayed 90 days by agreement of the parties but eventually the Mueller team will have to put up or shut up (and, if the latter, dismiss the indictment against the one actually fighting back). That last would be embarrassing. It's almost completely out of the news now but it's not gone away.

Now, Mueller has indicted 12 Russian government types for hacking the DNC and John Podesta's computers and stealing a lot of very embarrassing e-mails which Assange via Wikileaks was happy to dole out in batches in 2016. It might be partisanship on my part, but I have never believed that the Russians did any such thing. Clearly, Podesta opened up his hard drive due to a "spearfishing" probe, and somehow or other, the DNC e-mails got to Wikileaks. But who did it? How can you tell who did any hacking?

I've read the recent indictment. Long on evidence about the details of what it takes to hack a computer. Little shorter on evidence that the 12 Russians charged were indeed the Gucifer 2 who gave the e-mails to Wikileaks. The computer geeks (and I use that term affectionately) have looked at the possibility of downloading over an internet connection all the data that Gucifer 2 obtained. I have no knowledge of what one of them, Bill Binney, is talking about so this could be nonsense, but he tells us the amount of data taken could not have been accomplished over the net based upon the time-stamped files downloaded. The time-stamps are apparently really important. So, if Binney is right it;s more likely the e-mails came from downloading onto a physical drive, like a thumb drive. I doubt that Russians in Russia could use a thumb drive on a computer in America. Ergo, it had to have been an inside job of some sort. I'm not on board with the Seth Rich conspiracy theory. De mortuis nil nisi bonum.

I would feel less skeptical about this new Russian indictment if I knew for a fact that the FBI forensic teams have actually examined the DNC computer (or server or whatever) to see if there were traces of hacking in it that looked Russian, assuming hackers leave evidence of national origin behind when they hack things. We've been told that happened but, as far as I can tell, that opinion came from a foreign company and not from the FBI computer crime lab. I also would feel better about this not being a PR stunt if I knew that, at least once, an FBI special agent had talked to Assange in England about how his outfit got the information. Seems like a normal investigative thing to do. Well maybe not with our current FBI. They decided Hillary Clinton's innocence before they talked to her and other important witnesses. So there's that.

Anyway, if I were licensed to practice before the Court where the indictments were filed, I would seek to defend one of the Ruskies pro bono and demand the discovery. Then the fun would start, I believe.


Friday, July 13, 2018


Defying Catagorization

I've had recent arguments about whether the Nazi's accurately described themselves with their name, National Socialist and German Worker's Party. The historically ignorant ones I've been arguing with know that the Nazi's were right wing so their name using Socialist must have been some sort of mistake. Right, they were so stupid they couldn't even get their name right. On the other hand, they were patriots for their evil nation, but patriots none the less, and patriotism is generally uniquely on the right as the left tends to be internationalist. The lengthy list of socialist things the Nazis implemented during the dozen years of their existence as the ruling party in Germany doesn't seem ever to sway the historically ignorant from stupidly believing the Nazis were right wing and, indeed, far to the right, extremist right wingers, at that.

I generally just shake my head muttering "moron" repeatedly.

But regarding the near equal evil of Imperial Japan during the same time frame, it is very difficult to tell which party vying for power during the 30s was right wing and which was left. I have to say left and right just don't make a lot of sense regarding Japanese politics at that time. They were all ultra-nationalist and lukewarm lefty (all supported socialist like government programs). Here's the only real distinction I see between the Minsieto, the Shakai Taoishuto and the Tohokai, which among them had about 60% of the political parties' membership before 1940:

The biggest party thought that Japan was a superior nation with citizens superior to anyone else on Earth but opposed actually invading foreign nations. (I guess they kinda ignored what was already going on in Korea and China).

The other parties thought that Japan was a superior nation with citizens superior to anyone else on Earth and advocated invading all the inferior countries and killing and/or subjugating the inferior people there.

It's the political principals of the second group that was made the official policy of the Japanese Empire in 1940 when Japan became a one party nation by decree.

Awful lot of party leader assassinations during the 30s. I'm sure that didn't help things.



The Anti-Science Party

h/t Ace of Spades


Tuesday, July 03, 2018


Judicial Activism Versus Judicial Restraint

Although I think the man is very intelligent, and I give him full marks for his pretty consistent support of the First Amendment, Law Professor Erwin Chemerinsky, now at Boalt Hall, (the law school at Berkeley), is still lefty blindered and somewhat ignorant of history. And he displays it fully here in an article (very long) called A New Era for the Supreme Court.

We'll just visit some of the low points. First, definitions: Judicial Activism is defined as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."

Judicial Restraint, on the other hand, is the opposite and defined as "judicial deference to the intent of legislation, strict interpretation of the Constitution, and strict jurisdictional interpretation of the law."

OK, on to the article. Professor Chemerinsky starts with this:
The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda.
No, not activist. Just the opposite; aggressively following what the Constitution demands.

Did the 5-4 victories for the Rule of Law involve the Justices finding  creating a new, hitherto unknown, Constitutional right in the Constitution out of the umbras and the emanations of the penumbras of the document because not a single word of the Constitution mentioned this so called right?

No, there was none of that.

Does the professor supply any evidence of activism? Let's look.

Regarding the Janus case, the professor writes:
But the Court also held that non-union members do not need to pay the part of the dues that support the union’s political activities. The Court explained that it would be impermissible compelled speech in violation of the First Amendment to force non-union members to support political activities with which they disagree.

Chemerinsky says this application of the heart of the First Amendment on free speech was activism because it would upset precedent (Oh my!) and tear up a lot of local laws regarding the forced political speech the previous decision (Abood) allowed. So overturning bad precedent is judicial activism? Good to know.

Regarding the travel "ban" case, Trump v. Hawaii, the professor writes:

By a 5–4 decision along ideological lines, the Supreme Court reversed these courts and upheld the travel ban. Writing for the Court, Roberts said that the 1965 law prohibiting discrimination in issuing visas was not controlling because of an earlier federal law that allows the president to suspend entry of “immigrants or nonimmigrants.” It is strange that an earlier law is seen as superseding a later one, especially when the purpose of the 1965 statute was to stop the federal government from having immigration quotas by country, which tragically kept many fleeing the Holocaust from entering the United States.

There are two different rules about statutory construction. One is "specific overrules general" and the second is "later overrules earlier."  I have never been able to perceive the circumstances that require one of the two to be employed rather than the other one. But more specific statements of law are held to overrule general statements passed into law at a later date. And it happens a lot. So it's not odd at all. And is there anyone arguing that Trump was trying to introduce "immigration quotas" by the temporary delay in granting entry visas to both those immigrating and those just visiting? No, of course not, so the original law allowing the President to do just what Trump did would certainly be more specific than the 'no discrimination' law designed to prevent quotas on immigration. It kind of jumps off the page to anyone not subject to political tunnel vision.

Erwin goes on: "Neither [Janus or Korematsu] had any basis in terms of national security. There was no evidence linking Japanese Americans to any threat to the country then, nor any linking immigrants from the designated countries to terrorism today."

But you don't have to have evidence of a crime or proof of evil intent to stop someone at the border. You can stop people when you have a situation where it is reasonable to take action because, in the case of Japanese-American internment, there was evidence of Imperial Japanese efforts to create from the Nisei spies and saboteurs, and in the current case, the governments of the named countries are so dysfunctional, that we could not trust anything the governments said, assuming the governments gave us any information at all, regarding their citizen who wants to come here. It is always good to know if the person who wants to travel here was in prison for Jihadi activities or not, narco-trafficing or not, sexual assault or not. Information like that helps us make rational decisions about handing out visas in the first place.

And here's the big finish: "What will it mean to have five very conservative justices whose jurisprudence is based on the Republican platform? I have no doubt that there will be five votes to overrule Roe v. Wade, five votes to declare all forms of affirmative action unconstitutional, five votes to eliminate the exclusionary rule as a remedy when police violate the Constitution."

Here is where the professor is his most partisan. An honest legal scholar would admit that Roe, and the pure bullshit it was based on in Griswold, was monumentally bad legal reasoning and a prime examples of judicial activism. Moving on, I can't help but think that, as Chief Justice Roberts wrote,“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” So Erwin's complaints about stopping affirmative action seems to my ears to be supporting racial discrimination forever. (Sorry, Asians, you're just too talented and smart to let into Harvard). And haven't we hit Justice O'Connor's 25 year limit yet? And, finally, it has always been a close call whether the damage done by the exclusionary rule, releasing the guilty to create more victims of crime, outweighs the good it does in keeping the police honest. These are not questions based on any political platform but are the result of the law's interaction with the real world. An honest scholar would admit the lack of political content contained in dealing with these Constitutional questions.

So shame on Erwin for groundlessly accusing the originalists and Kennedy of partisan jurisprudence.

Labels: ,

Saturday, June 30, 2018


I Laughed Out Loud


Thursday, June 28, 2018


Thought of the Day

Oh, there’s plenty of big talk among Dems and their media Schumer-sniffers about the onrushing blue wave, but where is this wave? Where is it hiding? Where is there any indication that the people who elected Trump are going to say “Yeah, I like the tax cuts and the booming economy and beating ISIS and my kid not having to fight street-to-street in Seoul and the crackdown on illegals and the conservative judges and Trump generally not taking of guff from liberals and their media pets, but I’ve suddenly just realized that Trump can be mean sometimes so I’ll vote for Democrat guy who wants to help Pelosi take my guns, import MS-13 into my neighborhood, and then pester me at the Arby’s.”

Where is someone saying that? Where?

Just look how unhappy the libs are. It’s all outrage, all the time. You can’t be happy if you are constantly agitated. It’s unhealthy. It makes you look like a wacko. Yet they go nuts on social media, they go nuts at awards shows, and they go nuts when conservatives are trying to scarf down some tacos. If you are always going nuts, maybe that’s an indicator that you are nuts.

Kurt Schlichter


Wednesday, June 27, 2018


Defending Korematsu

This may turn out to be unpopular but this forgotten information should be presented. File this under speaking truth to power.

Here is the long-on-outrage-short-on-logic New York Times on the recent Supreme Court decision on the President's travel "ban" (v 3.0) in which the majority had read 8 U.S.C. § 1182(f) and the dissent apparently had not.

It’s no small paradox that the justices chose Tuesday’s ruling to formally overturn, at long last, one of the greatest abominations in the court’s history, Korematsu v. United States, the 1944 decision that upheld President Franklin Roosevelt’s order to lock up thousands of Japanese-Americans for years based on nothing but their ancestry — and based on a fabricated claim that our national security demanded it.
Let me introduce today's history-ignorant polemicists to the ghost of the NYT past, all the way back to 1983 when the reporters were coherent and knowledgeable about WWII history. We should never have revealed this, but, during WWII, we broke the German and Japanese codes and they did not break ours. So we knew what HQ in Tokyo was transmitting to the West Coast shortly after the war began. Although, then as now, we could only pinpoint the location of radio transmitters and could not find out who was receiving their transmissions. Here is what was being sent.

"Anyone reading this flow of messages during 1941 could easily conclude that thousands of resident Japanese were being organized into subversive organizations,'' Mr. Lowman said. ''Today we know that the Japanese Government misjudged the loyalty of Japanese Americans completely. But at that time no one knew for certain."

Only a few messages among the many hundreds reprinted in the Defense Department Magic study deal directly with the question of Japanese Government efforts to mobilize ethnic Japanese within the United States for intelligence purposes. However, hundreds of the cables contain espionage reports without citing the identity of the persons who furnished the information.

A cable from the Tokyo Government to its Washington embassy, dated Jan. 30, 1941, asked the embassy and Japanese consulates to arrange for ''utilization of our 'second generations' and our resident nationals.'' But it added, in parentheses, ''in view of the fact that if there is any slip in this phase, our people in the U.S. will be subjected to considerable persecution, the utmost caution must be exercised.''

On May 9, 1941, the Los Angeles consulate sent Tokyo a message marked ''strictly secret'' that seemed to assert that cooperation was being obtained from some ethnic Japanese.

So we knew transmissions to cause saboteurs and spies to arise on the West Coast were being sent from Imperial Japan, but we did not know who was receiving them. What to do to prevent sabotage on the West Coast? (The Germans were meanwhile planting sabotage on on the East Coast, although the FBI was competent back then and prevented it).

The solution was to move all the Americans of Japanese descent out of the West Coast. Certainly a harsh solution to an actual problem, but the worst thing ever? Hardly. And I can think of 8 Supreme Court cases much, much worse than Korematsu.

I would dearly love to join with those bashing the Democrats for their racist, groundless, horrible internment of the Japanese-Americans, but I know too much to do that.

There were German-American and Italian-American citizens interred as well on the East Coast, but not as many as the Japanese-Americans.

We won that war.


Tuesday, June 26, 2018


A Thoughtful Article

Despite an overwhelming bias against those on the right, this article in the New Yorker, is quite good; long, but good. If you have the time, you should read it. If you can't, I'll try to take on the problem the author thinks he's discovered. It's generally about blocking right wing speakers from Free Speech Movement U Cal Berkeley. From the big finish of the article, otherwise pretty rich in common sense from the likes of Carol Christ and Erwin Chemerinsky:

But I don’t think it’s beyond us to say, on the one hand, that everyone has a right to express their views, and, on the other hand, that a political provocateur may not use a university campus as his personal playground, especially if it bankrupts the university. At some point, when some enormous amount of money has been spent, it has to be possible to say, O.K. Enough.
The author is quoting Wendy Brown, about whom I know nothing.

The central take this article champions is a balancing test: The righteousness of allowing all to speak versus the harm some offensive speech, like the Westboro Baptist Church placards, will cause.

Most of us who have studied the Constitution, paying particular attention to the First Amendment, think that the righteousness of allowing all to speak completely overwhelms hurting someone's feelings. Indeed, that is precisely what the Supreme Court said in Snyder v. Phelps, a recent case upholding the right to make very offensive statements.

The author includes a quote from professor john powell (an ee cummings non-punctuation, non-capital use fan) that the psychological damage from offensive speech including "stereotype threat and trauma and P.T.S.D." is a much more major concerns than mere hurt feelings.

But that exaggeration of damage (PTSD from hearing Milo Yainnopouls? Please) is at the root of the left's desire to chip away at the First Amendment's protection in order to prevent hurt feelings. The left seem to ignore what good comes from hearing ideas outside your comfort zone, especially way outside it.

But back to Ms. Brown talking about Berkeley's having to pay so much money for protecting the right-wing speakers from violent protesters as a factor to be balanced against the good of free speech. Here's the question the article never covers and which never appears to have even been contemplated by anyone on the left quoted therein.

Why does the left feel it can violently stop the right from speaking? Doesn't that fascist thinking stem directly from lefty teaching, like what you no doubt get at Berkeley? Aren't the left leaning Berkeley types complaining about the current reality, having to pay the cost of physically defending right thinking speakers from lefty violence and the "hecklers' veto," which reality is a direct result of left leaning Berkeley types' advocated ideas? That's some non-Alanis Morissette type irony, right there.

I'll leave the last word for Candace Owens, whom I'm beginning to like a lot lately, responding to an unsuccessful attempt to silence her:

“Antifa, if you really take a look at their platform, they seem to be the ones that are the white supremacists,” Owens said. “They feel like their ideas are so supreme to everybody else’s that they have the right to boycott, to be violent.”


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